The State is a party to the International Covenant on Civil and Political Rights

1. The Working Group on Arbitrary Detention was established by resolution 1991/42
of the Commission on Human Rights, which extended and clarified its mandate
in resolution 1997/50 and reconfirmed it in resolution 2000/36. In accordance
with its methods of work, the Working Group transmitted the above-mentioned
communication to the Government.

2. The Working Group regrets that the Government did not reply within the 90-day
time limit.

3. The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(i) When it manifestly cannot be justified on any legal basis (such as continued
detention after the sentence has been served or despite an applicable amnesty
act) (category I);
(ii) When the deprivation of liberty is the result of a judgement or sentence
for the exercise of the rights and freedoms proclaimed in articles 7, 13, 14,
18, 19, 20 and 21 of the Universal Declaration of Human Rights and also, in
respect of States parties, in articles 12, 18, 19, 21, 22, 25, 26 and 27 of
the International Covenant on Civil and Political Rights (category II);
(iii) When the complete or partial non-observance of the international standards
relating to a fair trial set forth in the Universal Declaration of Human Rights
and in the relevant international instruments accepted by the States concerned
is of such gravity as to confer on the deprivation of liberty, of whatever kind,
an arbitrary character (category III).

4. In the light of the allegations made, the Working Group would have welcomed
the cooperation of the Government. In the absence of any information from the
Government, the Working Group believes that it is in a position to render an
opinion on the facts and circumstances of the case, especially since the facts
and allegations contained in the communication have not been challenged by the
Government.

5. Marco Antonio Sánchez Narváez, a bricklayer and shoemaker,
was arrested at 1.30 a.m. on 18 June 1993, while attempting to steal two cases
of carbonated beverages from a Lima apartment building owned by Máximo
Luis Pérez Santos. On the morning of the same day, agents of the National
Counterterrorism Directorate (DINCOTE), acting without a judicial warrant, raided
the apartment building and detained three persons. In the search conducted,
firearms, munitions and subversive propaganda were found. Although Mr. Sánchez
indicated at the outset that he was an ordinary offender and had no connection
with the other detainees, he was forced to sign the certificate of seizure of
the objects in question.

6. Marco Antonio Sánchez Narváez remained in police custody for
26 days, although the 1979 Constitution, in force at the time, stipulated that
a person could only be detained on the basis of a judicial warrant or if caught
in the actual commission of a crime. It also set 15 days as the maximum period
for police detention of individuals suspected of terrorism. During this time
he was subjected to torture.

7. Based on the conclusions of the police investigation, Mr. Sánchez
Narváez was tried in an ordinary court for the offence of terrorism.
He was charged with being a member of Sendero Luminoso, a subversive group,
and with collaborating on its behalf. The other detainees were referred to the
military courts for the offence of treason.

8. On 5 September 1995, the Specialized Division of the Higher Court acquitted
Marco Antonio Sánchez Narváez for lack of sufficient evidence,
considering that he had no connection with the other detainees, and accordingly
ordered him released. This judgement was subsequently upheld by the Supreme
Court in an executory judgement dated 28 May 1997.

9. However, Marco Antonio Sánchez Narváez was called as a witness
in the treason trial against the other individuals detained in the home of convicted
individual Máximo Pérez Santos. He testified before a naval court,
which, acting irregularly, ordered proceedings against him for treason, based
on the same acts for which he had already been tried by an ordinary court. Thus
Mr. Sánchez Narváez was being tried twice for the same acts.

10. In an executory judgement dated 17 April 1995, the Supreme Council of Military
Justice sentenced Mr. Sánchez Narváez to 20 years’ imprisonment
for treason, in that he had been “storing subversive material”.
Mr. Sánchez Narváez is serving his sentence at Castro-Castro Prison
in Lima.

11. The charge brought by the Special Military Judge was based on self-incrimination
and it is alleged that it was obtained under torture during police custody.
Marco Antonio Sánchez Narváez subsequently retracted his statement.

12. Marco Antonio Sánchez Narváez was tried by military courts
composed of “faceless” judges, hence his case was not heard by an
impartial court.

13. In the absence of a reply from the Government, the Group must render an
opinion based on the information in its possession.

14. In the report on its visit to Peru (E/CN.4/1999/63/Add.2, para. 51), the
Group drew attention to the implications of the confusion between the offences
of terrorism and treason, with the result that people could be tried twice for
the same acts, in a serious violation of the principle non bis in idem. In the
report the Group also noted, after an exhaustive analysis of the functioning
of the “faceless” courts, which through October 1997 rendered their
decisions on the basis of trials conducted with minimal guarantees, with such
serious violations of the rules of due process that they automatically conferred
an arbitrary character on the deprivations of liberty, in conformity with category
III of the Group’s methods of work.

15. The Working Group notes that the conditions under which the second trial
was conducted presented these features. It also notes that Marco Antonio Sánchez
Narváez was tried for terrorism by an ordinary court and acquitted, and
later tried by a military court for treason for basically the same acts, in
violation of the non bis in idem rule set forth in article 14, paragraph 7,
of the International Covenant on Civil and Political Rights.

16. In the light of the foregoing, the Working Group renders the following
opinion: The deprivation of liberty of Marco Antonio Sánchez Narváez
is arbitrary as being contrary to articles 9 and 10 of the Universal Declaration
of Human Rights and articles 9
and 14 of the International Covenant on Civil and Political Rights, and falls
within category III of the categories applicable to the consideration of cases
submitted to the Working Group.

17. Having rendered this opinion, the Working Group requests the Government
to take the necessary steps to remedy the situation, in conformity with the
standards and principles set forth in the Universal Declaration of Human Rights
and the International Covenant on Civil and Political Rights.